Cornell Law Review

Employment discrimination weakens the American economy, contributes to inequality, and deprives individuals of career opportunities. Estimates place the annual cost of employment discrimination at over sixty-four billion dollars. Economic research further documents earnings differentials of more than thirty percent between members of different racial groups or genders. To combat employment discrimination, Congress enacted a series of statutes including Title VII of the Civil Rights Act (Title VII), the Age Discrimination and Employment Act (ADEA), and the Americans with Disabilities Act (ADA). These statutes have the two-fold purpose of eliminating employment discrimination and providing make-whole relief to those who experience such discrimination. Of the several remedies Congress provided to realize these twin objectives, courts most frequently grant back pay and front pay. These remedies, however, prove insufficient to fully realize the promise of federal antidiscrimination law.

Back pay and front pay can restore plaintiffs to the financial positions they would have held absent discrimination but fail to deter discrimination equally against all classes of workers. Back pay and front pay provide a monetary award equivalent to the earnings a plaintiff loses because of employment discrimination. However, plaintiffs have a duty to mitigate their losses. The mitigation doctrine requires courts to subtract from back pay and front pay the amount the plaintiff actually earned or could have earned through reasonable efforts to attain alternative employment. This rule requires less specialized workers, who often find alternative employment quickly due to the many open positions they can fill, to mitigate away most of their damages. In juxtaposition, specialized workers who cannot quickly find employment receive compensation for larger damages. The mitigation doctrine thereby undermines the deterrence function of back pay and front pay by reducing the financial penalties imposed on employers who discriminate against less specialized workers.

To ensure the many less specialized workers, who can easily mitigate, still enjoy strong protections against discrimination, Congress should impose a mandatory civil penalty in addition to back pay and front pay. The penalty would increase with the number of employees and the proceeds would go to the United States Treasury. Successful plaintiffs could reclaim part of the penalty from the Treasury to the extent necessary to compensate for the emotional costs and unpleasantries of bringing employment discrimination suits. The addition of a civil penalty would ensure employers pay a cost for unlawful discrimination regardless of the employee’s ability to mitigate. At the same time, the payment of the fine to the Treasury would avoid overcompensating plaintiffs in violation of the make-whole principle. This new penalty would further the purposes of federal employment discrimination law by preserving make-whole relief while strengthening the deterrent against discrimination, regardless of the worker’s level of specialization.

The argument proceeds in seven sections. Section one reviews the debate over the mitigation doctrine and make-whole relief in the context of employment discrimination cases and private litigation more generally. Section two discusses the methodological approach. The third section provides an overview of the general rules governing the award of back pay and front pay. Sections four and five demonstrate how those rules differentially affect the damage awards in cases that involve specialized and less specialized workers. Section six explores how the courts have imposed high burdens of proof on plaintiffs as a way of lessening the mitigation doctrine’s adverse effects on less specialized workers. That section also explains why a higher burden of proof does not provide a long-term solution to the problems created by relying on mitigatable back pay and front pay awards as a deterrent to discrimination. The proposed solution, set forth in section seven, would use a mandatory civil penalty to further the law’s deterrence objective while leaving back pay and front pay to fulfill the make-whole relief objective. The final section summarizes the findings and reiterates the call for reform.

To read this Note, please click here: How the Mitigation Doctrine Produces Protections Against Workplace Discrimination.